State v. Gray
| Decision Date | 31 March 1866 |
| Parties | STATE OF MISSOURI, Respondent, v. HENRY GRAY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Criminal Court.
W. H. Lackland, for appellant.
Jos. P. Vastine, for respondents.
The first error complained of by the appellant is that the court wrongly instructed the jury as to what constituted larceny. East, in his Pleas of the Crown, defines larceny to be the wrongful or fraudulent taking or carrying away by any person of the mere personal goods of another, from any place, with a felonious intent to convert them to his (the taker's) own use, and make them his own property, without the consent of the owner. Bishop says, it is the taking and removing by trespass, of personal property, known to belong either generally or specially to another, with the intent to deprive him of such general or special ownership therein (1 Cr. L. § 419); and Blackstone (4 Com. 230) declares it to be the felonious taking and carrying away of the personal goods of another.
The statutory definition is, that every person who shall be convicted of feloniously stealing, taking, and carrying away, any money, goods, right in action, or other personal property, or valuable thing, &c., belonging to another, shall be deemed guilty of larceny. (R. C. 1855, p. 575, § 25.)
The court instructed the jury that larceny was the wrongful or fraudulent taking and carrying away by any person of the mere personal property of another, from any place, with a felonious intent to convert the same to his (the taker's) own use, and make it his own property, without the consent of the owner. This is in almost the identical language of East, and in substantial compliance with the statute.
The next point insisted on is, that the court erred in refusing to compel the State to elect on which count in the indictment a conviction was sought. The practice is well settled and firmly established in this State, that a motion to compel the prosecutor to elect the count on which the trial shall be had, is always addressed to the discretion of the court, and this court, will not interfere with the exercise of this discretion, unless it is manifest that it has been abused to the obvious and palpable detriment of the accused. It is often indispensably necessary to include several counts in the same indictment, to meet the proofs which may be given on the trial; and to arbitrarily compel an election in all instances, would tend to cripple prosecutions and defeat the ends of justice. (State v....
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State v. Smith
...State v. Woodall, 300 S.W. 712; State v. Arnett, 338 Mo. 907, 92 S.W. (2d) 897; State v. Shelby, 333 Mo. 610, 62 S.W. (2d) 721; State v. Gray, 37 Mo. 463; State v. Price, 153 S.W. (2d) 353, 348 Mo. TIPTON, J. Appellant was convicted of the crime of grand larceny of neat cattle in the circui......
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State v. Rader
...falls short of the instruction in the Waller case, 174 Mo. 518." To the same effect in substance are the holdings in the cases of State v. Gray, 37 Mo. 463; State Shermer, 55 Mo. 83; State v. Moore, 101 Mo. 316, 14 S.W. 182; State v. Speritus, 191 Mo. 24, 90 S.W. 459; State v. Fritchler, 54......
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State v. Smith
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State v. Moore
... ... and not a larceny and it was error to have told the jury that ... the [101 Mo. 329] commission of the acts mentioned in it ... rendered the prisoner guilty of larceny." The doctrine ... of this case was approvingly followed in State v ... Shermer , 55 Mo. 83. See, also, State v. Gray , ... 37 Mo. 463; Sackett on Instructions, 535, 539 ... II ... Where a party has the absolute property in the goods at the ... time they are stolen, though he be not in actual possession ... of them, it will be larceny to feloniously carry them away ... against his ... ...